Texas Judge’s Immigration Rebuke May Be Hard to Challenge

David Ingram and Mica Rosenberg, Reuters, February 18, 2015

President Barack Obama’s administration faces a difficult and possibly lengthy legal battle to overturn a Texas court ruling that blocked his landmark immigration overhaul, since the judge based his decision on an obscure and unsettled area of administrative law, lawyers said.

In his ruling on Monday that upended plans to shield millions of people from deportation, U.S. District Judge Andrew Hanen avoided diving into sweeping constitutional questions or tackling presidential powers head-on. Instead, he faulted Obama for not giving public notice of his plans.

The failure to do so, Hanen wrote, was a violation of the 1946 Administrative Procedure Act, which requires notice in a publication called the Federal Register as well as an opportunity for people to submit views in writing.

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The U.S. Justice Department was preparing an appeal of Hanen’s temporary injunction to the 5th U.S. Circuit Court of Appeals in New Orleans, Obama said. The court could consider an emergency request to block Hanen’s ruling, potentially within days, although most of the 23 judges on the court were appointed by Republican presidents.

There was no consensus among lawyers with expertise in administrative law and immigration law on whether Hanen would be reversed on appeal. But they said the judge was wise to focus on an area of administrative law where legal precedent is sometimes fuzzy.

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The “notice and comment” requirement acts as a brake on all presidents, slowing their plans by months or years.

The requirement, though, does not apply to “interpretative rules” or general statements of policy, an exception that Justice Department lawyers said applied to Obama’s announcement in November. Rules that must be submitted for notice and comment are sometimes known as “legislative rules.”

For Hanen, the pivotal question became whether the new rules, such as granting work permits to potentially millions of illegal immigrants, was binding on federal agents or merely general guidance. He ruled that they were binding, and that Obama should have allowed for notice and comment.

Lawyers with expertise in administrative law said there was little guidance from the U.S. Supreme Court on what qualifies as a rule that needs to be published, leaving disagreement among lower courts and a grey area for Hanen to work in.

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An appeal before the 5th Circuit could take months, as lawyers file written briefs and the court holds oral argument and comes to a decision.

The appeals court could also consider other questions, such as whether the states that brought the lawsuit had what is known as standing to sue or whether Obama violated the clause of the U.S. Constitution that requires presidents to “take care that the laws be faithfully executed.”

There is no chance Obama would begin the notice-and-comment period now, because U.S. immigration policy would be frozen in place during the lengthy process, said Peter Margulies, an immigration expert at Roger Williams University School of Law in Rhode Island.

He said it could delay Obama’s policy for “a minimum of six to eight months, and potentially much longer.”

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